The South China Sea (33 page)

The new Secretary of State, Hillary Clinton, was briefed and ready. Her first trip in office, in February 2009, took her to Japan, South Korea, Indonesia and China. In Jakarta she announced that the US would sign the ASEAN Treaty on Amity and Cooperation. This was a strategic move that the then Australian Prime Minister, Kevin Rudd, had been pushing the United States to make for some time. It gave the United States membership of the East Asian Summit, which brings ASEAN leaders around the table with counterparts from China, Japan, Russia and India among other countries. Clinton signed the treaty on 22 July. In between, on 7 May, the Chinese government had alarmed the entire region by appending a map of the ‘U-shaped line’ to its submission on the United Nations’ Commission on the Limits of the Continental Shelf. It was the first time it had used the line in an official international context and, in so doing, appeared to be laying claim to almost the entirety of the South China Sea. The game changed.

Until this point, and as far back as the Second World War, the United States had consistently refused to take sides in the sovereignty disputes in the South China Sea. But under Hillary Clinton the intra-regional conflicts over territory and the wider issues between the US and China began to interlink. According to Mitchell's successor at CSIS, Ernie Bower, this was the point at which the Obama administration came to recognise that ‘the Chinese are reading their own press releases and actually do believe that it's their time. They've dropped the Deng doctrine of “hide your capabilities, bide your time” and they're responding to a domestic political push for the Chinese to assert themselves.’
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This was compounded by what was, from an American point of view, a disastrous visit to China by President
Obama in November 2009. ‘Obama tried a new approach, proposing a world where the US and China would work together,’ Bower remembers, ‘but that was seen as weakness in Beijing. That was when the Campbells and Mitchells asserted themselves and said “we need to broaden the chessboard here” and define a return to Asia, using ASEAN-based architecture that will force the Chinese to come to the table because ASEAN is hard-wired for regional balance.’

So Clinton kept on showing up at ASEAN events, and getting more deeply involved in regional politics. Several ASEAN members, concerned by China's new-found assertiveness, were now keen to play the ‘American card’. The result was a showdown in Hanoi at the ASEAN Regional Forum or ARF – another venue where ASEAN meets its neighbours and the world's major powers. In July 2010 Clinton told the annual meeting that:

Part of this was a restatement of an American position first announced in May 1995 but the emphasis on ‘collaborative diplomatic process’ was new and a public statement of support for the ASEAN claimants’ strategy. Her comments about the threat of force, accordance with UNCLOS and the derivation of claims solely from land features were clear rebukes to the Chinese position. Following her speech, 11 other countries commented on the Sea disputes. This was the first time they had been raised at a meeting of ARF: American forthrightness had given ASEAN members and other countries the political cover they needed to speak up. The Chinese government accused Washington of making trouble but, according to Derek Mitchell, Clinton only spoke as she did because of requests from
the region. ‘There is no doubt. The issue was Southeast Asia pushing us. The Chinese like to have a narrative of victimisation but that wasn't how it was.’ However, ASEAN didn't want to push this assertiveness too far. Exactly two months later, at the second US–ASEAN summit in New York, the final communiqué made no mention whatsoever of the South China Sea.
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The ‘ants’ had made their point and now wanted to calm the waters to avoid upsetting the other elephant in the region.

After 2010, American calls for ‘ASEAN unity’ and ‘ASEAN centrality’ became louder. The phrases sound benign but in the context of the South China Sea they aren't neutral: it's an attempt to corral all ten member states into standing behind, in particular, Vietnam and the Philippines in their territorial disputes with China. But a former ASEAN Secretary-General, Rodolfo Severino of the Philippines, gave me a pessimistic assessment of the chances of American success: ‘I don't think you can get ASEAN to agree to anything, because each country has a different perspective on it. It's all national interests – or what they think are their national interests. Very few leaders are willing to take a long view on this because the next election is only two or three years away.’ The Chinese understand this very well and have worked doggedly to frustrate any combined ASEAN activity on the disputes. Some ASEAN states have little interest in the Sea, few obligations to the claimant countries and enjoy the benefits of Chinese investment and largess. ASEAN is already being pulled in different directions.

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Another evening in Phnom Penh: two and a half years after the Uyghur deportation. The venue is grander but the issue is the same: to whose tune does Cambodia dance? This time it's not refugees and humanitarian groups asking the question but the foreign ministers of ASEAN. It's almost exactly 45 years since their predecessors signed the Bangkok Declaration and the organisation has come a long way. The meetings in Phnom Penh are being held under the official slogan of ‘One Community, One Destiny’. And yet, in one of the many grandiose meeting rooms inside the optimistically named Peace Palace, ASEAN is in crisis over the South China Sea.

The story can begin when ASEAN first took a united position on the Sea, with the ‘Manila Declaration’ of July 1992; or with the first attempts to
draft an enforceable ‘Code of Conduct’ for the Sea, which began in March 1995 immediately after the Chinese occupation of Mischief Reef (see Chapter 3); or with the adoption by ASEAN and China of a ‘Declaration on the Conduct of Parties in the South China Sea’ (DOC) in November 2002; or with the agreement of ‘Guidelines to Implement the DOC’ in July 2011. The issue has been the same for more than two decades: some members of ASEAN want to bind China to a set of rules limiting its actions in the Sea, in particular to prevent it occupying any more land features. It clearly helps Vietnam and the Philippines, and to a lesser extent Brunei, Malaysia and Indonesia, if they can face China with the backing of all ten members of ASEAN. It's clearly to China's advantage if it can negotiate with each country separately. The struggle has been interminable.

In March 2012 I met the Filipino Foreign Secretary, Albert del Rosario. The huge windows in his giant office at the top of the Department of Foreign Affairs provided a panoramic view over Manila Bay and the Sea beyond. Del Rosario knew very well what was at stake out there. Before taking up his position he had been a director of both FirstPacific and Philex: companies that own controlling stakes in Forum Energy. Just as he was moving between jobs, a year before our conversation, the
Veritas Voyager
, contracted by Forum to survey the Reed Bank for gas deposits, had been obstructed by ships from China Marine Surveillance (see Chapter 5). China seemed determined to stop Forum from developing the field. Del Rosario said the Philippines wanted a set of rules, a Code of Conduct, to resolve the problem: ‘We realise that the hydrocarbon deposits there are very important to our future. We need those resources for our economic development as quickly as possible. It could be the game-changer for us.’

There was another, symbolic, reason to push ahead with the Code of Conduct. November 2012 would be the tenth anniversary of the signing of the DOC. The issue had been drifting for a decade. ASEAN, which was then being chaired by Cambodia, had assigned the job of drawing up yet another draft of the code to the Philippines but del Rosario revealed that he was working on something even more ambitious. ‘You're catching us at a time when we're trying to begin an initiative which we feel is the way to move forward,’ he told me. ‘There are four claimants from ASEAN. What we think we ought to be doing, and we've started this process, is to get together with the country that is closest to ourselves in terms of thinking
how we may be able to settle these issues [Vietnam]. We will, on a bilateral basis, work with this country in terms of settling issues between us quietly. Then the two of us will go to the third country [Malaysia] and say would you like to do this with us and then if we get that done then the three countries will go to the fourth country [Brunei] … And then we turn around and we say to Cambodia: “look we've done this by ourselves but you can take credit for it as Chair so that this could be an ASEAN initiative.” We've actually embarked on the initiative already.’

In other words, del Rosario was hoping to agree a draft Code of Conduct that would contain a mechanism to resolve all the maritime disputes between the Philippines, Vietnam, Malaysia and Brunei (and ultimately China too) in just nine months. It appeared wildly ambitious – the timetable one might expect in a business deal, not an international negotiation. The mechanism – a ‘Zone of Peace, Freedom, Friendship and Cooperation’ in which all sides would agree which areas are disputed and then focus their efforts accordingly – looked good on paper (see Chapter 9 for more). The problem was that Philippine diplomacy lacked the capacity to bring it to fruition. ASEAN only moves forward when all ten of its members agree and there was no sign that the Philippines was putting in the necessary behind-the-scenes diplomacy to bring the other capitals on board. Even del Rosario admitted that the plan had been received poorly when he tabled it at an ASEAN Foreign Ministers meeting in January, ‘essentially because there wasn't much time given for ASEAN to be able to digest the concept’.

The Philippine approach had two fundamental flaws. Firstly it was presenting a fully formed plan to official meetings without the necessary preparation and secondly Manila wanted to bind the Beijing authorities with a set of enforceable rules – the ‘Code of Conduct’ – but was not prepared to engage its Chinese counterparts in talks about those rules until all ten ASEAN countries had agreed them first. China could argue that it should be at the table from the start and several ASEAN countries were likely to agree. Beijing was working hard on its counter-strategy: focusing on the country where it had most leverage. At the end of March, four days before an ASEAN leaders’ summit, President Hu Jintao made an official visit to Cambodia, meeting Hun Sen, announcing a new $70 million tranche of aid and pledging to double trade between the two countries to $5 billion in five years.
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After the meeting, one of Hun Sen's
advisors, Sri Thamrong, told journalists that Hu had said China wanted to move towards finalising a code of conduct in the South China Sea but not ‘too fast’. Hun Sen had responded that he shared China's belief that the Sea issue should not be ‘internationalized’.
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Indeed, the Cambodians initially left the issue off the official agenda of the ASEAN summit, only reinstating it after protests from the Philippines and other countries. In late May China offered Cambodia a further $20 million in military aid
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and in mid-June another loan – of $430 million.
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As ever, both sides insisted that there were no strings attached.

On Monday, 9 July 2012, Albert del Rosario was in Phnom Penh making another attempt to persuade his ASEAN colleagues to take a tough line on Beijing. In the four months since he had outlined his strategy to me, Chinese ships had taken control of the Scarborough Shoal and the Chinese National Offshore Oil Company (CNOOC) had tendered exploration blocks inside Vietnam's Exclusive Economic Zone. In late May, the Philippines and Vietnam had asked their ASEAN colleagues to issue a statement condemning what they saw as violations of the spirit of the DOC. But, said the Cambodian Foreign Ministry, there was no consensus on the matter.

There was slightly better news for Manila on the Code of Conduct. Del Rosario's draft had been eviscerated during the ASEAN discussions – the elegant mechanism for deciding which areas were in dispute had gone – but the dispute resolution process was still intact.
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It was a good enough result, particularly when the foreign ministers formally adopted the text that morning and agreed to pass it to the Chinese for the next stage of the negotiations. The ministers’ plenary session ended and they moved on to the less formal part of the discussion – known as the ‘retreat’. But far from being a quiet chat, the retreat pitched ASEAN into one of the worst crises in its history.

The retreat was supposed to agree the final communiqué to be issued after a week of meetings that would include ASEAN discussions with Australia, Canada, China, the European Union, India, Japan, New Zealand, Russia, South Korea and the US – individually, in different combinations and finally altogether as the ASEAN Regional Forum (ARF). The work of drafting the communiqué had been delegated to del Rosario and his counterparts from Indonesia, Malaysia and Vietnam: all countries with direct interests
in the South China Sea. Their draft text had 132 paragraphs. Paragraphs 14 to 17 referred to the South China Sea, and one, Paragraph 16, specifically mentioned both Scarborough Shoal and the Vietnamese complaint. Communiqués are the bread and butter of such gatherings. They're usually drafted in advance, issued once the formal business is complete and almost immediately forgotten. It wouldn't happen like that in Phnom Penh.

We know some of what took place next because the notes of one delegation were leaked to the Australia-based academic Carl Thayer.
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Albert del Rosario made an impassioned call for support, asking his ASEAN colleagues why they had stayed silent as the Philippines lost control of the Scarborough Shoal. Was China's move not a violation of the ‘need to promote a peaceful, friendly and harmonious environment’ as laid down in the DOC? He listed other examples of Chinese ‘expansion and aggression’ over the years and accused Beijing of ‘bad faith’ in failing to withdraw its ships from the Shoal. Then, in a final flourish, del Rosario deployed the words of Pastor Martin Niemöller's anti-Nazi recitation: ‘First they came for the communists but I didn't speak out because I wasn't a communist. Then they came for the trade unionists .�€�.�€�.’ But since most ASEAN states (including the Philippines) have actively persecuted Communists in the past and some of the others still ban independent trade unionists today, this didn't cut much ice. More to the point, few felt that there was any risk of China ‘coming for them’ after the Philippines. Some, in fact, blamed the Philippines for escalating the dispute at Scarborough Shoal by deploying its naval flagship, the
Gregorio del Pilar
, early in the standoff. Others were concerned that Manila had been openly appealing for United States support – violating ASEAN's cherished neutrality.